9911796707
TMI Blog2004 (8) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... ve not determined the correct value of the each grade of the Barium Carbonate. In this circumstance, where there is Revenue neutrality, then in view of the decisions relied upon by the appellants and the decision of Larger Bench in case of Jay Yuhshin Ltd. [ 2000 (7) TMI 105 - CEGAT, COURT NO. I, NEW DELHI-LB] and the decision of Supreme Court in case of Amco Batteries Ltd. v. Collector of Central Excise, Bangalore [ 2003 (2) TMI 66 - SUPREME COURT] , the intention to evade payment of duty cannot be alleged. Therefore extended period u/s 11A(i) cannot be made applicable in the present case. On this ground alone, the order of the Commissioner (Appeals) is set aside as the show cause notice has been issued after the period of 06 months. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding differential duty of Rs. 2,80,400/- under the provisions to sub-section (1) to Section 11A of the Central Excise Act, 1944. The case was adjudicated by the Addl. Commissioner who confirmed the demand and imposed equivalent penalty under Section 11AC, apart from penalty of Rs. 20,000/- under Rule 173Q and also charged interest under Section 11AB of the Central Excise Rules, 1944. On appeal, the Commissioner (Appeals) upheld the order of the Addl. Commissioner. Ld. Advocate pleaded that since they were clearing the goods to their own unit and whatever the duty was paid by them, they were taking Modvat credit on the goods in their Granulation Unit, therefore, there was revenue neutrality and question of intention to evade payment of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, the manufacturer can claim the Modvat credit. This will result in revenue neutrality. Job worker cannot be attributed with any intention to evade payment of duty. Proviso of Section 11A of the Central Excise Act, 1944 not invokable. (iii) Auto Profile (P) Ltd. v. Commissioner of Central Excise, Jamshedpur - 2001 (134) E.L.T. 117 (Tri. - Kolkata) He therefore pleaded that even if the appellants have taken average price for the Barium Carbonate for clearing to their Granulation Unit, but such average price taken by them does not lead to the conclusion that there was an intention to evade payment of duty by the appellants. In these circumstances, the duty demanded and penalty imposed are not sustainable. 3. Shri P.M. Saleem, Ld. SDR appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their own Granulation Unit on payment of duty by taking average value of Barium Carbonate of the various grades. The duty paid by them on the Barium Carbonate is being taken as credit in their Granulation Unit. Therefore there is Revenue neutrality in this case despite the fact that the appellants have not determined the correct value of the each grade of the Barium Carbonate. In this circumstance, where there is Revenue neutrality, then in view of the decisions relied upon by the appellants and the decision of Larger Bench in case of Jay Yuhshin Ltd. (supra) and the decision of Supreme Court in case of Amco Batteries Ltd. v. Collector of Central Excise, Bangalore [2003 (153) E.L.T. 7 (S.C.) = 2003 (55) RLT 272 (S.C.)], the intention to ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
